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BLOG@IP::JURPatent Attorney Axel H Horns' Blog on Intellectual Property Law.
Wednesday, June 14, 2006DE: Lawyers and The Internet - HTML Source Code, Metatags, and Trade Marks.Today I just stumbled across a decision of the German Supreme Court ("Bundesgerichtshof", BGH) in Karlsruhe dated May 18, 2006, and concerning the case I ZR 183/03. I won't go into all of the details of that matter; the decision was given in proceedings interdicting the Defendant to make use on the Internet of some sign "impuls" protected by a trade mark registration of the Plaintiff. In particular, the question of usage of such a protected trade mark sign in HTML meta-tags was discussed, and apparently the Court might have intended to state that, at least in this particular case, usage of a sign in a HTML meta-tag may constitute a trade mark infringement or is to be banned in view of the laws against unfair competition. The reasons of the decision are not available yet.But what is a "HTML meta-tag"? In the operative provisions of the judgement the Court simply wrote (emphasis added): "[...] Den Beklagten wird es untersagt, [...] im HTML-Code von Internetseiten, auf denen Dienstleistungen der unter a) bezeichneten Art angeboten werden, das Wort 'impuls' zu verwenden; [...]"I would like to offer my own translation as follows (emphasis added): "[...] Defendant shall undertake [...] not to use the word 'impuls' within the HTML code of Internet pages on which services of the types as named under item a) are offered. [...]"So, Defendant is obliged "not to use the word 'impuls' within the HTML code of Internet pages". No mentioning of "meta-tags" or the like. Just referring to the "HTML code". This literally means that Defendant is barred not only from using "impuls" in the context of some <META> tag - this could well be called the core of the decision - but also elsewhere in the HTML code, e.g. in HTML comments, as HTML variables in <FORM> tags, or perhaps even in JavaScipt code lines embedded in the HTML code. No search engine would ever look at these other occurrences of the word 'impulse', and they would not enhance the visibility of the web site in question. There appears to be no legal reason at all why it should be possible to ban the use of a certain word within HTML comments or the like. We shall have to wait and see until the Court provides a statement of reasons; however, I can hardly imagine that the full text of the decision might reveal proper reasons as to why the use of a particular word should be banned even within HTML comments or the like.The particular mishap as pointed out above probably will not have dramatic practical consequences for the Defendant in this case albeit it surely requires a very tough nitpicking walk through all lines of the HTML code of the Defendant's website in question. However, it illustrates the practical difficulties in the technical domain posed by Internet technology to the legal world even today, more than fifteen years after the invention of the World Wide Web. Even in trade mark cases there is no guarantee that all persons involved have an identical understanding of concepts like "meta-tag" or "HTML code". But if the BGH should really have intended to make clear that in general and well beyond the case as decided recently not only the visible parts to be rendered on the screen plus meta-tags devoted to attract search engines of a web site but in fact the full source code thereof must be entirely free of signs of trade marks of all competitors, then tough times would come for operators of websites acting under German law. Technorati Tags: Metatags
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